PROTEST BASICS - 1701

Definition

A protest is a challenge brought by a supplier/bidder during the competitive solicitation process, asserting that the solicitation requirements are restrictive or unclear or that the protestant should have been selected for award.

Although referred to by different names (complaint, exception, initial protest, protest of the requirements, and protest of proposed award) there are basically two types of protests.  For the purposes of this chapter, protests will be referred to as either an “initial protest” or a “protest of proposed award.”

Initial Protest (also known as protest of requirements):  is a challenge by a supplier against the technical, administrative, or cost requirements described in a formal IT competitive solicitation.

Protest of Proposed Award:  is a challenge by a participating bidder against the proposed contract award for non-IT goods or IT goods and services.

Post Award Disputes:  a post award dispute is a disagreement or conflict between a bidder/contractor and a department after a purchase document has been executed.  Most often, contract disputes arise due to contract performance issues on the part of either the contractor or the State.

Protest Statutes

Applicable protest statutes and regulations regarding challenges and protests are contained within the following:

• Initial protests and protest of proposed awards for IT goods and service contracts – Public Contract Code (PCC), Section 12102.2 (g).
• Protest of proposed award for non-IT procurements (PCC, section 10306). Victims Compensation and Government Claims Board (VCGCB) – Board Hearing Regulations, California Code of Regulations (CCR), Title 2, Division 2, Chapter 1, Article 17, Bid Protest, Subarticle 1, General Provisions; sections 870.1 – 877
• Alternative Protest Process (APP) - PCC, Section 12125 et seq.
• Office of Administrative Hearings (OAH) – Arbitration Regulations - CCR, Title 1 Division 2, Chapter 5, Article 1, General Provisions

Authority and Role over Protests

The director of the California Department of Technology (CDT), or a person designated by the director, may consider and decide on initial protests of bids for information technology projects conducted by the (CDT) and telecommunications procurement made pursuant to Section 12120. The Director of the Department of General Services, or a person designated by the director, may consider and decide on initial protests of all other information technology acquisitions and non-it goods.

VCGCB must review and render a final decision for protests of solicitations conducted under PCC, section 10306 and 12102.2(g), also known as a traditional protest of proposed award, when they are not withdrawn.

OAH arbitrates and renders a final decision for protests of solicitations conducted under PCC, section 12125 et seq., also known as the Alternative Protest Process (APP)*, which requires protestants to meet regulatory filing requirements and potential bond submissions to retain the right to continue into a hearing.

DGS/PD and (CDT) cannot delegate its authority to manage protests.  Therefore, whenever a department is notified of a protest of non- IT goods or IT goods and services, regardless of the PCC or CCR under which the solicitation is conducted, the department shall contact DGS/PD/Dispute Resolution (DRU) or the California Department of Technology (CDT), whichever agency has oversight for the procurement immediately (the same day or within 24 hours).

Click here for contact information for DGS/PD/Dispute Resolution Unit (DRU) and the California Department of Technology (CDT).

See State Contract Manual (SCM), Vol. 1 for information regarding protests of non-IT services solicitations that are not an LPA transaction. When conducting LPA Request for Offers (RFO), buyers must not include competitive solicitation language regarding small business preference, protest language, intents to award, evaluation criteria or advertising requirements.

*As of the date of publication of this manual, current policy restricts the use of the APP process to DGS/PD and the (CDT) only.

Ability to Award During Protest

Unless the purchase is conducted under APP, no awards may be made until the protest is withdrawn, the State cancels the solicitation thereby ending the protest, or it is resolved by VCGCB.

If the purchase is conducted under APP, the (CDT) or DGS Director may authorize an award(s) while the proposed award is under protest and pending resolution at OAH.

Dispute Resolution Unit (DRU)

DGS/PD/DRU facilitates resolution of protests against IT solicitation requirements, proposed awards for non-IT goods and IT goods and services, and contract disputes.

Protest Provisions in Standard Solicitation Language

DGS/PD solicitation documents provide suppliers with the information for initial protests or protest of proposed awards for competitive solicitations.  This language is found in the following:

• Bidder Instructions, Article # 12 – Specification Concerns
• Bidder Instructions, Article # 21 – Protests  (PCC section 12102.2(g))
• Alternative Protest Process (PCC section 12125 et seq.)
• Section II, Rules Governing Competition (IT Formal Solicitation)
• Required language for IT RFQs that exceed $100,000

Click here to view the Bidder Instructions.

Solicitation Identifies Key Action Dates

When applicable, the competitive solicitation will provide key action dates that notify bidders of specific times and dates to which bidders must adhere to file initial protests and protests of the proposed award for either IT goods and services or  non-IT goods valued over $25,000.00.